Nathália Guedes Brum
Lawyer at Marcos Martins Advogados
Free legal aid was created with the aim of providing broad and unrestricted access to justice for all those who are unable to afford the costs and expenses arising from the process, whether they are individuals or legal entities.
In this sense, article 5, item LXXIV, of the Federal Constitution, states that “the State shall provide full and free legal assistance to those who can prove that they have insufficient resources”.
The Code of Civil Procedure, in turn, has specific rules and requirements for granting the benefit, and it is certain that the insufficiency of resources mentioned in article 98 of the Code must be proven by the party requesting the benefit and will depend on the individual analysis of each specific case and evidence of the party’s financial impossibility to pay the costs, as a hindrance to their constitutional right of access to the Judiciary.
The judge can reject the claim if there are well-founded reasons in the case file that show the lack of conditions for granting the benefit, subject to the rule in article 99, paragraph 2 of the CPC[1].
However, in times of coronavirus, the legal assumptions for granting gratuity must be relaxed and better analyzed by the Magistrate, since, in many situations, the documents previously used to prove financial hardship, such as income tax returns and bank statements, for example, will not serve to portray the reality of the moment after the pandemic crisis.
This is because, even if we see in the income tax returns the existence of real estate or considerable income from legal entities, these are fatally hampered by the current economic scenario, since several states have adopted restrictive preventive measures, from declaring the existence of a public calamity in the country due to the Covid-19 pandemic, such as social distancing and quarantine, with a determination to close commerce and non-essential economic activities.
Thus, the lack of business liquidity, forecasts of a recovery in the economy and the impacts that the social distancing and quarantine measures may have had on the functioning of companies, the maintenance of jobs and the difficulty of re-employment must be taken into account when granting the benefit at this time.
In this context, access to justice cannot be denied to entrepreneurs, especially small and medium-sized ones, who cannot afford the costs of proceedings to review bank contracts, for example, as long as it is proven how the current pandemic has impacted their business and how, momentarily, there will be a need to grant the benefit.
In addition, paragraphs 2 and 3 of article 98 of the Code of Civil Procedure[2] make it clear that liability for costs and attorney’s fees is suspended in the event of a successful decision, which can be enforced up to five years after the final judgment, if it is proven that the insufficiency of resources no longer exists.
Another point to note at this exceptional time of economic downturn is the possibility of deferring payment of costs at the end of the process, or a reduction in the percentage of costs, or even the payment of procedural costs in installments, as provided for in paragraphs 5 and 6 of article 98 of the Code of Civil Procedure[3], which can be requested alternatively, thus enabling universal access to justice.
In a recent decision, handed down in interlocutory appeal no. 2055385-98.2020.8.26.0000, under the reporting authority of Judge Marcos Pimentel Tamassia, of the 1st Public Law Chamber of the São Paulo Court of Justice, the deferral of procedural costs was granted due to the aggravating party’s presumed incapacity , as a result of the exceptional situation generated by the Covid-19 pandemic.
In these terms, the momentary inability to bear the costs of the proceedings, arising from the current economic scenario, currently hampered by the Covid-19 pandemic, cannot give rise to any kind of obstacle to access to justice, and it is necessary to relax the legal requirements for granting the benefit of free legal aid and/or the granting of alternative measures, such as deferral, reduction or installment of costs , with only the presumption of the applicant’s financial incapacity being sufficient.
Marcos Martins Advogados is aware of these possibilities and will seek to advise you in the best way to guarantee your rights and access to the Judiciary during this exceptional period of the new coronavirus pandemic.
Any questions? Talk to our lawyers and get advice.
[1] Art. 99: The request for gratuity of justice may be formulated in the initial petition, in the defense, in the petition for admission of a third party to the proceedings or in an appeal.
(…)
§ Paragraph 2 The judge may only reject the request if there is evidence in the case file that the legal conditions for granting the gratuity are not met and, before rejecting the request, must order the party to prove that these conditions have been met.
[Paragraph 2 – The granting of gratuity does not remove the beneficiary’s responsibility for the procedural costs and attorney’s fees arising from their loss.
§Paragraph 3 – Once the beneficiary has won, the obligations arising from his or her loss shall be subject to a suspensive condition of enforceability and may only be enforced if, within five (5) years of the final and unappealable decision that certified them, the creditor demonstrates that the situation of insufficient resources that justified the granting of gratuity no longer exists, after which time the beneficiary’s obligations shall be extinguished.
[Paragraph 5– Gratuity may be granted in relation to any or all procedural acts, or may consist of a percentage reduction in procedural costs that the beneficiary has to advance during the course of the procedure.
§ Paragraph 6 – Depending on the case, the judge may grant the right to payment in installments of procedural costs that the beneficiary has to advance during the course of the procedure.
